How to Testify in a Deposition
If you are a party or a witness in a lawsuit, you may be called upon to give your deposition. Participation in any legal proceeding can be stressful, if for no other reason than you are doing something you may have never done before. The purpose of this series of advisories is to attempt to demystify the deposition process so you can feel as comfortable and confident as possible under the circumstances.
Most of us have watched trials on television or in the movies. The trial of a lawsuit is, however, just the tip of the iceberg. TV shows and movies cannot afford to bore us with the excruciating and tedious preparation that happens before the trial begins. Depositions are taken before a trial and are almost never depicted accurately, if at all, on television or in films. Nevertheless, depositions are very important elements of the lawsuit
Depositions are part of the pretrial discovery phase of a lawsuit. The discovery phase is information-gathering. Each party to a lawsuit is allowed to find out, or "discover," relevant information in the possession of other parties to the lawsuit, and even nonparties. The three most commonly used forms of discovery are requests for production of documents, interrogatories, and depositions. Requests for production of documents allow you to inspect documents or other tangible evidence possessed by others that is relevant to the issues in the lawsuit.
Interrogatories are written questions that are required to be answered in writing under oath. In depositions, parties and other witnesses are subject to "live" questioning by attorneys. The questions are answered under oath and everything said during a deposition is recorded by a court reporter.
In most cases, depositions are taken at a lawyer's office or at the office of a court reporter. The people present at a deposition are the person being questioned, that person's attorney, the attorney or attorneys representing the other party or parties to the lawsuit, and the court reporter. The parties to the lawsuit may also attend the deposition, but their presence is generally optional, unless, of course, they are the one whose deposition is being taken.
Why is your deposition being taken? It is usually for one or more of the following reasons. If you are a party to a lawsuit, your deposition is being taken so that the opposing attorney can find out what facts, documents, and other witnesses you know about, to find out your version of the events that gave rise to the lawsuit, and to find out the how you know what you know.
The attorney is doing this not only to obtain information, but also to evaluate the strength of your legal position, and to probe for weaknesses. Another reason for your deposition is to create a record of your version of events to use against you if your testimony at trial is different than your deposition testimony. Yet another reason for your deposition is to allow the opposing attorney to evaluate your ability as a witness, that is, how credible will your testimony be perceived by the judge or jury. The opposing attorney might subject you to some very intense grilling during the deposition to test how you might react under the pressure of a trial.
The most important rule in giving deposition testimony is to tell the truth. At the beginning of the deposition, you will be sworn in by the court reporter. Your testimony will be given under penalty of perjury, and people have been prosecuted for giving false testimony in a deposition. Having said that, however, there are rules and unique features of depositions that you can use to tell the truth in the best light possible.
First, you are only required to answer the question that was asked. Therefore, it is vital that you listen to and understand the question before attempting to answer it. Generally, attorneys have a fairly good idea of what information or answer they are trying to get from you when they ask you a question. If you are at all uncertain or you have any doubt about what information you are being asked to provide, you may ask the attorney to clarify the question or to rephrase it in a way that you can understand.
Once you feel you are clear as to what information or answer you are being asked to provide, think before you answer. Some questions call for a simple yes or no. Some questions are open-ended. Think about the best way to answer the question. One way testifying in a deposition differs from testifying at trial is that, in a deposition, you can take as much time as you want before you give your answer.
Although taking too long to answer questions may detract from your perceived credibility at trial, the transcript of the deposition will not show any gap between the question and your answer. Therefore, you can take as much time as you want or need before you give your answer. You may not need much time to answer a question, but it is nice to know you have time if you need it.
Don't worry about what the opposing attorney thinks. He or she cannot force you to answer a question other than the one that was asked, and he or she cannot force you to answer the questions rapidly. You are not there to help or to make friends with the opposing attorney. Some attorneys act cold and somewhat hostile in depositions, and some try to wear you down with kindness and affability, to make you think he or she is your friend.
Do not fall for either act. Either way, make sure you understand each
question, answer only the question that was asked, and take your time to think about how you are going to phrase your answer for as long as you feel you want to or need to. In fact, at any time during a deposition, you may request a break to go to the bathroom, get a drink, or just to walk around. If you find yourself feeling unduly stressed or overwhelmed, or you just want to have more time to think, feel free to request a break.